Should corruption be categorised as an ‘international’ crime - that is, conduct that is in breach of ‘peremptory norms’ and for which universal jurisdiction is appropriate? Is it more effective to implement legislation providing for extraterritorial jurisdiction? Could international tribunals provide a forum for prosecuting and punishing offenders?
Universal jurisdiction for corruption may seem hopelessly unrealistic - “universal tyranny of judges” as Henry Kissinger once called it (“no safe havens” counters Amnesty International). Certainly, any effort by states to legislate to allow the prosecution of corruption wherever committed, regardless of any connection to the prosecuting state, will be hugely controversial and would require corruption to be defined as a crime against humanity. The 2003 demise of Belgium’s 1993 law of universal jurisdiction is not an encouraging omen. However, fluidity in international law is nothing new. Historically ill-defined crimes such as torture become definitive. Broadly described criminal conduct sharpens into separate offences. The motor for these changes is perhaps an identifiable growing concern with human rights, both within a state and in the international arena. There are few who would deny that corruption, particularly in the developing world, has a catastrophic effect on the lives of millions akin to crimes against humanity as we commonly understand them.
Conceptually, therefore, it is perhaps no great leap to define corruption as heinous conduct in the premier division of morally reprehensible behaviour. International instruments of increasing sophistication and geographical reach may ultimately provide the basis for universal jurisdiction for prosecuting corruption. However, in the short term, states have become increasingly focused on the use of extraterritorial legislation to augment their claims to be at the forefront of global anti-corruption efforts. The 1977 US Foreign Corrupt Practices Act (as amended by the OECD-inspired International Anti-Bribery Act 1998) was the precursor statute for similar legislation in other industrialised states. The US is generally seen as an aggressive investigator and prosecutor of those engaged in overseas bribery where the suspect has any connection with the US.
In the UK, despite ongoing debate as to whether bribery of overseas officials was a crime under our existing corruption laws, the question was put beyond doubt by sections 108 and 109 of the Anti-Terrorism Crime and Security Act 2001, which allows the prosecution in the UK of British companies and individuals involved in bribery and corruption overseas. There is now an overseas anti-corruption unit within the City of London police (complete with a 24-hour telephone line). Although to date there have been no prosecutions in the UK for overseas bribery, the Serious Fraud Office has a number of ongoing enquiries, some of which may result in charges in the course of this year. Other European countries are also ratcheting up efforts to combat overseas corruption by prosecuting alleged offenders in their own domestic courts.
This activity is all very laudable, but the obstacles to successful investigation and prosecution of corruption in the suspect’s own state are significant. Difficulties in identifying and obtaining evidence, inadequate (though improving) mutual legal assistance procedures, limited public funding for investigations and judicial procedures and political immunities all hamper what are invariably complex enquiries and proceedings. Perhaps somewhat harshly, the phrase ‘legal colonialism’ has been used to describe the prosecution of suspects in their own countries, where penalties (certainly in Europe) may be lower, rather than where the offences may have taken place.
One answer to these difficulties might be for greater resources to be applied by the international community to improving the police and judicial systems in those states which show themselves willing, but not necessarily able, to prosecute the perpetrators of corrupt conduct in the state where it took place. The UK Government’s Department for International Development, the World Bank and the United Nations are all involved in programmes to this end.
An effective international regime for the recovery and repatriation of the proceeds of corruption is increasingly being seen as a significant weapon in the armoury of both those states that suffer from grand corruption by rulers or former rulers, as well as police and prosecutors in those states that provide the necessary banking services. In the UK, part 11 of the Proceeds of Crime Act 2002 allows assistance to be provided to other jurisdictions in restraining assets (even at the investigation stage) and enforcing overseas confiscation orders. There is also a framework for civil recovery (that is, non-conviction-based asset confiscation) on behalf of other states. The UK’s regime reflects the provisions of chapter five of UNCAC, which requires states to implement effective co-operation in asset recovery investigations.
So what of international tribunals? The 2006 Commonwealth working group on asset repatriation specifically refers to corruption being defined as an international crime and suggests that the jurisdiction of the International Criminal Court (ICC) be extended beyond the prosecution of crimes against humanity as defined in article seven of the Rome Statute to include corruption. Early drafts of the statute did, in fact, include references to crimes other than crimes against humanity - such as terrorism and drug trafficking.
A highly-respected academic work from 2001, the Princeton project, explicitly refers to the ICC’s list of “serious crimes” for which universal jurisdiction ought to be implemented as being non-exhaustive. In theory, an international tribunal would be an ideal forum for dealing with those who have been involved in grand corruption. The theory is supported by comments such as those of Lord Hope, who has stated that functional immunity should not apply to criminal acts which a public official carries out under colour of his authority as head of state, but which in reality were for his own pleasure and benefit. However, this position is not widely supported in international criminal law and the persistence of personal and functional immunity for, at the very least, former heads of state and high-ranking officials is perhaps an insuperable bar to developing the ICC or a similar international tribunal to hear corruption cases.
Fighting corruption on the international stage is often described in terms of the appalling effects it has on the lives of ordinary citizens. For corruption to be categorised as a true international crime, this moral opprobrium is essential. However, it should not be forgotten that it is, pre-eminently, an economic crime. The impetus behind international efforts to combat corruption is, arguably, to provide a level playing field for business.
The OECD has issued guidelines for multinational businesses, and the World Bank has an integrity department dedicated to the investigation of fraud and corruption. There is no conflict between a developing jurisprudence which seeks to eliminate safe havens for those guilty of corruption and this commercial approach to the issue. Indeed, hitching the procedural and jurisprudential coach to the locomotive of international business may prove the most effective means of bringing justice to those suffering from corruption. However, while there is no conflict, there is certainly a tension between legal and political proactivity and the very different demands of international business. It will be important in the future to ensure that the tension is creative and that the current momentum towards fighting corruption internationally is maintained by the effective implementation of international conventions and the development of domestic anti-corruption initiatives.
Corruption may not yet be an international crime in the true sense, but there is very much an international agenda for fighting it and it is one that is set to develop in scope and effectiveness.
Stephen Gentle is a partner at Kingsley Napley.